Alper v. Tormey

McLAUGHLIN, J.

This is an action to recover sixty tons of steel rails. At the time the action was commenced the property in controversy was in the possession of defendant Tormey, but at the trial he expressly disclaimed all interest in the rails. Subsequent to the commencement of the action defendant Wittenmyer, as assignee of the Union Stock Yard Company, an insolvent debtor, filed his complaint in intervention and set up his claim to the possession and ownership of

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said rails as such assignee. Judgment was entered in favor of the intervener, and plaintiffs appeal from an order denying their motion for a new trial. Appellants contend that the evidence is insufficient to sustain the findings, and the question thus presented, boiled down to its essence, involves the ownership of the rails here in controversy. It is admitted that the rails were owned by the insolvent corporation, and passed to the intervener by virtue of the assignment to him. But it is claimed that they were included in a sale of certain property of such corporation made by the assignee to plaintiff Alper. At the time the action was commenced, the rails were lying upon land owned by defendant Tormey. They had been brought there and, as he put it, “stored” on the land with his consent. The Union Stock Yard Company owned a plant which covered about thirty-five acres, and in connection therewith operated spur tracks which passed over Tormey’s land. These rails were not laid, but were lying on the ground about fifty feet from such tracks, at a point about three hundred feet from the line of the Union Stock Yard Company’s property. The undisputed facts touching the sale out of which this litigation arose may be briefly stated as follows:—

On November 12, 1900, the intervener, as assignee, sold to plaintiff Alper, all the right, title, and interest of said insolvent, and said assignee in and to certain blocks of land in Rodeo, Contra Costa County, “together with all the buildings, machinery, and fittings, corrals, pens, sheds, and appurtenances now erected or in process of erection upon said blocks, and all and every the railroad tracks and railroad superstructures, which have heretofore been built by the Union Stock Yard Company of San Francisco, . . . and used or intended to be used in connection with the improvements and machinery in said blocks.” This sale was confirmed by the court, but disputes arose touching the payment of taxes, and “whether certain property in and upon the above-described premises and used in connection with the business formerly carried on there was